In an interview with “Fox News Sunday” to promote his new book, Justice Neil Gorsuch offered some advice when asked about President Joe Biden’s Supreme Court reform proposals: “Be careful.”
Caution is prudent — judicious, even — but the context surrounding Gorsuch’s remarks is worth exploring.
In a clip of the interview, which aired in part on Sunday, host Shannon Bream asked the justice about Biden’s proposals, including term limits and an enforceable ethics code. Gorsuch demurred at first, noting that it’s a political issue in a presidential election year.
Then he continued, “I have one thought to add”:
It is that the independent judiciary means — what does it mean to you as an American? It means that when you’re unpopular, you can get a fair hearing under the law and under the Constitution. If you’re in the majority, you don’t need judges and juries to hear you and protect your rights. You’re popular. It’s there for the moments when the spotlight’s on you — when the government’s coming after you. And don’t you want a ferociously independent judge and a jury of your peers to make those decisions? Isn’t that your right as an American? And so I just say: Be careful.
So, what are we to make of Gorsuch’s thought?
On the one hand, it’s cliched enough that it’s almost difficult to disagree with at a certain level of generality. Yes, people’s rights should be protected no matter who they are. Judges should be independent in all circumstances. It’s not entirely clear what juries have to do with this subject, but they’re an important part of our system, too.
Yet, to the extent that the concern is that court reform threatens judicial independence: How is that, exactly? It’s unclear how term limits, for example, would make judges less independent, as opposed to them simply serving for shorter, predetermined amounts of time. The status quo, meanwhile, is a chaotic, inherently politicized one in which justices seek to time their retirements so that a president from the political party that appointed them can nominate their replacement. Perhaps that’s independence in the sense that it’s what a given justice wants, but it’s difficult to see how that leads to greater fairness for the people bound by the high court’s rulings. Judges are cautious creatures. And any powerful official, Supreme Court justices included, won’t relinquish power easily, whether by way of being checked by a co-equal branch of government or otherwise. But if caution is warranted in altering the status quo, then it’s warranted in maintaining it, too. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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